By Dale Kasler
California's drought police, slapped down in court just a few weeks ago, have been cleared to go after water districts accused of illegally diverting water.
In a closely-watched case with statewide implications, a Sacramento Superior Court judge declined a request by the West Side Irrigation District, a small agency in the Delta, for a preliminary injunction that would have reined in the State Water Resources Control Board. The state board is pursuing fines and other enforcement actions against West Side and a few other water districts over allegations of illegal pumping.
"This certainly is a win," said David Rose, staff counsel at the water board.
Judge Shelleyanne Chang's decision late Monday came less than a month after she handed the state board a potentially damaging setback. In a case involving West Side and three other districts, she issued a temporary restraining order preventing the state from enforcing a series of "curtailment notices" telling the districts to stop pumping water from rivers. She said the board violated the districts' due-process rights by depriving them of a chance to dispute the state's findings.
The restraining order caused an uproar in California's water world. Although it affected only those four districts, experts said it could have derailed the state's broader effort to clamp down on improper water use. The state has issued curtailment notices to 4,600 irrigation districts and other water users this year, covering a combined 9 million acre-feet of water. That's nearly 3 trillion gallons.
After the first order, the state board amended its curtailment notices to make it clear the water districts could challenge the state at administrative hearings. Now, Chang has said the state board can proceed with its enforcement actions.
"The board went back to 'go,' started over, and initiated an administrative process that eliminates the due process argument," said Richard Frank, an environmental law expert at the UC Davis School of Law.
The state went back on the offensive right after rewriting its curtailment notices. It filed a cease-and-desist case against West Side, accusing the district of illegally taking water from the Old River in San Joaquin County in May. The district faces fines of up to $10,000 a day for every day it drew water from the river, although it could plead its case before the state board.
The district's lawyers have said the cease-and-desist order was illegal, despite the rewritten notices, and represented retaliation against West Side for suing the state. They maintained the Old River pumping was legal, and questioned whether West Side could get a fair hearing before the state board.
State officials have said they will give West Side a chance to tell its side of the story. They denied retaliating against the district, noting that the investigation began weeks before the district sued.
The judge said "a full administrative hearing...is the appropropriate procedure," and she declined to intervene.
West Side's lawyers weren't available for comment Tuesday.
(c)2015 The Sacramento Bee (Sacramento, Calif.)